IP protection preserves WTO accountability and resolves legal obligations

Demands for WTO accountability to, or accommodation of, non-WTO obligations are also sometimes framed as concern over the prospect of norm conflicts due to the activities of multiple actors operating within the same policy space. The argument generally is that the WTO, with its capacity for strategic linkage bargains, has the constitutional capacity and, perhaps, mandate to internalize the negative trade-offs associated with the free trade regime by recognizing the legal obligations of states to, for example, protect the environment, promote fair labour standards, protect human rights or secure other human welfare goals. Thus, claims for norm accommodation in the WTO reflect, at least partially, a legal argument that the trade system must be constrained by the obligations arising from other international law regimes, and that the welfare objectives of free trade should cohere with the social goals that more directly animate other multilateral instruments. To minimize conflicts among disparate legal regimes, scholarly attention has been directed at the importance of managing the inter-dependency that develops when institutional allocations of responsibility overlap.7 Such overlaps could be the unavoidable result of the proliferation of specialized bureaucracies that autonomously expand their specific mandates in response to the complexity and transnational nature of global problems.8 At other times, however, shared institutional oversight of a subject matter has been the deliberate design of states, such as in the case of intellectual property (IP), which was incorporated into the trade regime through the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement).9 With specific regard to TRIPS, a more nuanced form of inter-dependency has emerged from the strategic behaviour of states seeking to exploit the non-hierarchical structure of the international community by proposing norms in alternative fora specifically to undermine, if not upend, TRIPS obligations.10 Regardless of the underlying basis, however, scholars and commentators have encouraged stronger institutional coordination among international organizations as one way to overcome institutional isolation and to facilitate effective fulfilment of related mandates.11 The emphasis on coordination characteristically presumes equality among the relevant international organizations In this article, I argue that the WTO, in a hierarchical division of labour with the World Intellectual Property Organization (WIPO),12 should be promoted as the future locus of substantive international IP regulation, particularly with respect to the creation of IP norms affecting the regulation and supply of global public goods such as health, education, scientific data and the environment. I advance three principal arguments in support of this claim. First, linkage is an indelible fact of modern economic relations. WIPO is neither formally charged nor structurally designed to accomplish the kind of linkage bargains now associated with the WTO. Second, the WIPO-WTO Agreement,13 while not unambiguous, can reasonably be interpreted as creating a hierarchical relationship between the two Organizations. Third, while there are risks and problems associated with a move to the WTO, particularly the WTO’s casuistic methods, there are good reasons, mainly flowing from the economic interests of developing and least-developed countries (DCs and LDCs), to prefer a hierarchical approach to the current institutional structure of global IP regulation